City of Racine v. Emerson

• Decision Date: 02 May 1893
• Citation: 55 N.W. 177,85 Wis. 80
• Parties: CITY OF RACINE v. EMERSON.
• Court: Wisconsin Supreme Court

85 Wis. 80

55 N.W. 177

CITY OF RACINE

v.EMERSON.

Supreme Court of Wisconsin.

May 2, 1893.

Appeal from circuit court, Racine county; Robert G. Siebecker, Judge.

Action by the city of Racine against Thomas J. Emerson to recover a penalty for obstructing a street. From a judgment for plaintiff, defendant appeals. Reversed.J. E. Dodge, for appellant.

Samuel Ritchie, for respondent.

ORTON, J.

This action is to recover the penalty, under a city ordinance, for the maintenance of an obstruction by the defendant, consisting of a fence in front of lots 11 and 12, in block 10, on the plat made by one Moses Vilas, in 1842, of section 16,--the school section,--as an addition to the village of Racine, on the east side of Wisconsin street. It is claimed that said fence is within the east side of Wisconsin street, two feet at one corner of said lots, and two feet eight inches at the other corner. The defendant has been present with this fence standing substantially where it is now since 1848, so that, if this fence is an obstruction to Wisconsin street, it is a very ancient one; and the defendant has been guilty of maintaining it over 40 years. The following seem to be the facts established by the evidence: This fractional section 16 was surveyed and platted, under an act of the territorial legislature requiring such duty to be performed by the school commissioners of the village of Racine, by one Moses Vilas, a surveyor, and competent to do such work, first, in 1842. The north and south streets on this plat were intended to correspond with, and to be a continuance of, the north and south streets in the old village plat of section 9. The first street north and south was Main street, near the lake; the next, Wisconsin street; and the next, Barnstable street, now called College avenue; the next, Chippewa street, now called Park avenue; the next, Villa street; the next, Campbell street, now called Grand avenue; and the next, Center street. The blocks were divided into lots as far west as Villa street, and as far south as Twelfth street; and the lots of the defendant were on the southeast corner, between Wisconsin street and Ninth street, running east and west. In 1845 this plat was resurveyed by the said Vilas, and the lots and streets in the vicinity of the lots in question remained unchanged; and Wisconsin street extended south to the section line, and the blocks, not before divided, were divided into lots. In 1849, after the state was admitted into the Union, in accordance with Rev. St. 1849, p. 763, § 5, the appraisers of school lands, whose duty it was to plat and appraise school lands, adopted this plat of 1842 as extended in 1845, and filed the same in the office of the secretary of state, as the plat of this fractional school section. On these plats the blocks are 480 feet long north and south, and 240 feet wide east and west, divided into tiers of six lots each, 80 feet wide and 120 feet deep, according to the certificate; but these measurements were not very accurate, and varied considerably, as might be expected in surveying through a heavily timbered and wild tract of land. Stone monuments were placed in many places, as required by the statute then in force, and probably many stakes were stuck, to indicate the fixed lines of the survey; and one stone monument was placed at the southeast corner of lot 12, block 29, which still remains as a fixed point for any subsequent surveys. The defendant, in 1848, owned the lot next north of his present lots 11 and 12, and he called upon the said Vilas, as a surveyor and the maker of the plat, to determine the west line of his lot on Wisconsin street. There were then fences all along for a considerable distance on the east side of that street north and south, and in front of his lot, and had been for several years. The said Vilas determined and indicated said fence at the southwest corner of lots 11 and 12, between Wisconsin street and Ninth street, as on the true line. The present fence is on that line, and a fence in front of said lots has been on the same line since and before 1848. This old plat did service and was the basis of all the local surveys of the lines of lots on streets between owners during the settlement and improvement of this part of the city of Racine, down to the year 1881. When the common council of said city adopted a new and arbitrary plan of a resurvey and replatting of this part of the city, and employed surveyors to do the work according to such plan, they fixed the line of Main street according to said stone monument, and then made all the other streets north and south agree with that line, making the streets 60 feet wide, and divided the distance between Main street and Villa street equally between the blocks, as also the distance between Villa street and Center street between the included blocks, dividing the surplus equally between the blocks. By this plan the lines of lots were materially changed, and the location of fences and buildings had to be materially changed to suit the new lines. Monuments were set at various points by this plan and resurvey in 1881, and in 1890 the city engineer, by the order of the common council, ran the lines of Wisconsin street according to said monuments and the newly-found distances, and found that the fence of the defendant was within that street, as above stated. On the ground of this new line, so found, this action is predicated. As early as 1844 the lots in this part of the city were occupied by lessees or purchasers, and fences were built along Wisconsin street according to stakes set to indicate the lines according to the old plat, and such fences, or many of them, still stand in the same places, and shade trees were set out and buildings erected on or according to such lines. Immediately across Ninth street, south of defendant's lots, is the lot of Dr. Hoy; and next to his is the lot of I. H. Tinsler; and in 1846 a fence was built on the east side of Wisconsin street in front of these lots and the next half lot south, so that there was about 200 feet of continuous fence along that line, which was built according to stakes set at the corners of the blocks and lots by the said Vilas, to indicate the true line according to his plat. In the next block south, Henry S. Durand owned the lots in 1849 or 1850, and found the fences built in front on Wisconsin street as old fences, and found the stakes at the corner of the lots...